Interview, Orly Taitz: Chief Justice Roberts Calls Conference on Obama Challenge: Lightfoot v. Bowen

Fort Hard Knox ^ | January 7, 2009 | Arlen Williams

[Kevmo]

There was a motion for a stay and a petition for certiorari; each got a conference. Nothing unique there.
***Lurkers will understand that I won’t take your word for it. It seems unique to me and I’d like to see other lawyers weigh in on this uniqueness.

[Kevmo]

Those are cases getting kicked out of court as soon as they come up, because they aren’t giving the court anything useful and correct.
***I understand that Congressman Billybob is a busy guy, so that’s probably why he doesn’t just come in and settle all this. However, earlier this week I posted a similar supposition using these cases and he said that it was a “good analysis.” So why don’t you take it up with billybob? He can withdraw his assessment that what I wrote was a good analysis and then I can withdraw the argument. Until then, my argument has the seal of approval of the resident Free Republic constitutional scholar. And if you want to displace him from that “title”, feel free to have that battle right out in the open here on FR.

[Lurking Libertarian]

My argument cites the Rules of the Supreme Court. But fine, you don’t have to believe me. We will see what happens on Inauguration Day. My prediction is that Roberts will swear in Obama.

[Red Steel]

Motions can be denied by a single Justice. Certiorari can only be denied by a conference.

"Lightfoot v. Bowen, for a stay pending the filing and disposition of a petition for a writ of certiorari,"

Being a stickler here, I see the operative word "and" soon followed by "writ of certiorari."

It looks like Kennedy also denied the Certiorari with the stay.

[Kevmo]

We will see what happens on Inauguration Day.
***If your argument proceeds from that, then it is an argument from silence. Is that what you are proceeding from? If not, why bring it up at all? None of us know the future. Most of us realize that the likelihood of zer0bama getting sworn in is high, but none of us knows for certain that it will happen. If we knew that much of the future we’d be wealthy. Not only that, but the SCOTUS could simply go wobbly due to cowardice even with a valid question of eligibility right in front of them. That doesn’t make the question of eligibility incorrect, it makes them human.

[mlo]

I look forward to BillyBob clarifying the comment you have taken so to heart.

For the record, I have no ill will towards BillyBob and mean him no disrespect by saying that everyone is human and we all make mistakes sometimes. Perhaps he was posting a little too quickly and misunderstood what you were saying.

There has been a prior instance where I corrected him on legal point, back in the 2000 election circus I believe. I recall he acknowledged the correction. I don't remember what the issue was and it doesn't matter anyway. As I say, everyone makes mistakes.

If Libertarian Lurker or myself are mistaken I'm sure BillyBob can come back and detail why cases going to conference is a measure of their merits.

[Lurking Libertarian]

"Lightfoot v. Bowen, for a stay pending the filing and disposition of a petition for a writ of certiorari," Being a stickler here, I see the operative word "and" soon followed by "writ of certiorari."

The motion was for a stay until he filed a petition for certiorari and the court ruled on that petition. Kennedy denied the motion for a stay. He didn't deny a petition for a writ of certiorari because none was ever filed.

[mlo]

"It looks like Kennedy also denied the Certiorari with the stay."

The request was for a stay "pending the filing and disposition...". Kennedy only denied the stay.

[Lurking Libertarian]

***If your argument proceeds from that, then it is an argument from silence. Is that what you are proceeding from? If not, why bring it up at all? None of us know the future. Most of us realize that the likelihood of zer0bama getting sworn in is high, but none of us knows for certain that it will happen. If we knew that much of the future we’d be wealthy. Not only that, but the SCOTUS could simply go wobbly due to cowardice even with a valid question of eligibility right in front of them. That doesn’t make the question of eligibility incorrect, it makes them human.

I'm not suere what we're arguing about, then. I don't know if Obama was born in Hawaii; I wasn't there and neither were you. I have been arguing that these cases challenging his qualifications are going nowhere because courts generally stay out of political questions like that, and I think they will stay out of this one.

[mlo]

Sorry, didn’t mean to get the name wrong. It’s Lurking Libertarian.

[Deepest End]

I guess it's possible for someone to dissent and not note that in the Court's order, but if this is the greatest constitutional issue of our time, why didn't Thomas or Scalia record a dissent from the denial of cert?

Please advise me if you have a question or comment worthy of discussion. If you wish to bloviate ... have at it.

[FTJM]

The wording or variation on the word "certificate" is not the point. It is a legal birth certificate. It is prima facie proof of the facts of birth that are contained on it. If you believe Hawaiian law says something else, please cite the law here.

No wording or variation to it; they are two completely different documents. The Hawaiian law distinguishes between the two of them:

http://hawaii.gov/health/vital-records/vital-records/vital_records.html

http://capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0001.htm

http://capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0013.htm

http://capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0014_0003.htm

[mlo]

"No wording or variation to it; they are two completely different documents."

You're missing the point. I'm saying the document in question is a birth certificate, in its general popularly understood meaning. A document issued by a government agency that certifies the facts of birth. That it meets the legal requirements of a birth certificate and is legal proof.

Arguing about different forms and titles doesn't change that. Whatever other forms there are than that one, whatever their precise titles, *that one* is a legal birth certificate.

[Red Steel]

Yes, I knew the answer...

[BuckeyeTexan]

Regarding your discussion of conferences and denials of cert:

Prior to the conference, the chief justice circulates a “discuss list.” This list contains all the cases thought worthy of discussion at conference. Any justice can add any case to this list. Cases that do not make the discuss list—about 70 percent—are automatically denied cert. Each case presented to the Court is still reviewed in each justice's chambers, but only those cases on the discuss list are talked about at the justices' regular conference. Approximately 30 percent of the filed cases reach the discuss list. The remaining requests for review are rejected, without further consideration.

Source

It would seem that cert is denied in 70% of all cases without being discussed at conference. It would also seem that if a case is put on the "discuss list" for conference, then one of the justices thought the case worthy of discussion.

The above link also mentions that a denial of cert has no bearing on the merits of the case itself.

[Lurking Libertarian]

It would seem that cert is denied in 70% of all cases without being discussed at conference. It would also seem that if a case is put on the "discuss list" for conference, then one of the justices thought the case worthy of discussion.

That's absolutely true-- in fact, it's exactly what I said in this post more than a week ago-- but all of the cases will be shown on the Court's docket as having been distributed for conference. The "discuss list" is never made public. So we have absolutely no way of knowing if any of these cases was ever even put on the "discuss list" or not.

The above link also mentions that a denial of cert has no bearing on the merits of the case itself.

A denial of cert. is not precedent for any future case, because the Court expressed no view on the merits either way. But it has the effect of leaving the lower court's decision intact.

[BuckeyeTexan]

I'm not a legal scholar, obviously, but this is my understanding:

The justices make decisions at the conference only on cases that appear on a discuss list, from which many requests have been eliminated. Cases that didn't make the list are automatically denied (without conference).

There would be no reason to distribute a case for conference if that case is not also put on the "discuss list" since the justices are making decisions about only cases that are on the discuss list.

While a denial of cert does leave the lower court's ruling intact, it does not indicate that the SCOTUS agrees with the lower court's ruling. In fact, lawyers may not cite a denial of cert as being an indication of the court's position on a case/issue.

[LucyT]

Thank you, BuckeyeTexan.

Ping

[Lurking Libertarian]

The justices make decisions at the conference only on cases that appear on a discuss list, from which many requests have been eliminated. Cases that didn't make the list are automatically denied (without conference). There would be no reason to distribute a case for conference if that case is not also put on the "discuss list" since the justices are making decisions about only cases that are on the discuss list.

All cases are put on the "conference list." A day or two before the conference, the "discuss list" is circulated, but is never made public. If you look on the Supreme Court's docket, every single case in which certiorari was denied will be shown as having been distributed for a conference, even though most of them were not actually discussed.

While a denial of cert does leave the lower court's ruling intact, it does not indicate that the SCOTUS agrees with the lower court's ruling. In fact, lawyers may not cite a denial of cert as being an indication of the court's position on a case/issue.

Absolutely correct.

[BuckeyeTexan]

All cases are not put on the conference list.

The creation of the discuss list is the first opportunity for justices to influence what cases come before the Court. When a justice places a case on the discuss list, they lead its subsequent discussion at conference before the Court votes on certiorari. The Court receives over 8,000 requests for review each term but less than 100 are granted certiorari. Furthermore, conference discussions and votes on certiorari do not take place for the overwhelming majority of those cases because they are never selected for discussion by any justice. The Court makes a significant and early cut before voting on certiorari, though it is largely unexplained by the literature on Supreme Court agendasetting.

Source